Today’s Washington Post carries a story that is quite unlike their usual coverage that tends to tilt toward violence answering most problems. In the story is a striking photo of former UN Secretary-General Kofi Annan, former President of Finland Martti Ahtisaari and former President of Mexico Ernesto Zedillo. Annan, Ahtisaari and Zedillo are traveling as a contingent of The Elders (Mehr News states that Desmond Tutu also traveled with the group), a group founded by the late Nelson Mandela, and are visiting Tehran. When I saw the photo and read the story, I couldn’t help noting the striking contrast between this group of elder statesmen who are traveling the globe to promote peace and diplomacy while the US is saddled with elected representatives who
travel the globe to promote war. The “Three Amigos” of Lindsey Graham, John McCain and Joe Lieberman made too many trips to count, always doing their best to promote America’s forever wars and to advocate spreading them to more countries. With Lieberman’s retirement from the Senate, the latest trip for hypocrisy tourists McCain and Graham had John Barrasso sitting in the third position as they went to Kabul to lobby for indefinite detention without charges and for Karzai to sign the Bilateral Security Agreement so that US troops can remain in Afghanistan after the end of this year.
The Post describes the Tehran trip:
Members of the Elders, a group of former statesman and high-profile peace mediators promoted by the late Nelson Mandela, are visiting Tehran to push for compromises on disagreements between Iran and world powers.
“We must rebuild trust and mutual respect in the region, which is not easy and requires patience,” former United Nations secretary general Kofi Annan said Monday. Annan, a member of the delegation, made the remarks at the Iranian Foreign Ministry.
The lofty purpose of the three-day visit is to “encourage and advance the new spirit of openness and dialogue between Iran and the international community, and to explore what could be done to enhance cooperation on regional issues,” according to a statement issued by the Elders ahead of their arrival in Tehran.
In a press release Monday, after the first day of the visit, Annan had this to say:
As President Rouhani said to the UN General Assembly in September, that alongside widespread fears in the world today, and I quote:
“There are new hopes; the hope of universal acceptance by the people and the elite all across the globe of ‘yes to peace and no to war’; and the hope of preference of dialogue over conflict and moderation over extremism.”
We believe there has been a number of recent positive developments, most importantly the interim nuclear agreement, signed in Geneva last November. These efforts now need to be sustained to achieve final agreement.
In this regard, we must rebuild trust and mutual respect in the region and further afield. This is not an easy task. It will need patience and perseverance.
Contrast that diplomacy with this Lindsey Graham quote found in the New York Times coverage of the trip to Kabul and in reference to Afghanistan releasing prisoners who have been cleared by the review board at Parwarn Prison:
“If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “There will be a backlash in the U.S. Congress.”
Graham only knows war and retribution, this time in the form of cutting off aid.
The world benefits greatly when shuttle diplomats are allowed to ply their trade to promote peace. If the shuttle war mongers are ignored, real progress is likely to ensue.
Today’s New York Times dutifully bleats to us that Afghan President Hamid Karzai has been “warned” over his plan to release 88 prisoners from the Detention Facility in Parwan over the objections of the US. The warning:
“If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “There will be a backlash in the U.S. Congress.”
Those doing the warning were hypocrisy tourists Lindsey Graham and John McCain. Missing their third amigo, Joe Lieberman, the duo settled for stand-in John Barrasso to join them on the trip. It appears, however, that Barrasso opted out of the opportunity to open his mouth, as he is not quoted in the Times piece and doesn’t appear in the video interview ToloNews conducted while they were in Kabul:
The hypocrisy emanating from [Linsey, as he is identified in the ToloNews video] Graham and McCain is staggering. Back in December of 2011, Graham led the charge to put remarkably strong rights protection for the Parwan prisoners into the NDAA, as Marcy noted, but Obama then proceeded to gut that language with his signing statement.
The entire issue of the prison at Parwan and the “independence” of Afghanistan to make its own decisions on the fate of prisoners put into the facility by US forces has been a point of contention for years and has seen significant deception on the part of the US. For example, in September of 2012, the US pretended, as they had several times before, to hand over “complete” control of the prison to Afghans, but still claimed to have veto power over the release of any prisoners. The US pretended again in March, 2013 to do the handover of the prison.
The current controversy again seems to come down to whether this veto power still exists and to the underlying wish of the US for Afghanistan to practice indefinite detention without charges, which Afghanistan has resisted instituting.
The relevant section 1024 of the NDAA calls for review of Afghan prisoner status:
But the NDAA wasn’t all bad when it comes to U.S. military detention policy. In fact, section 1024 of the law, spearheaded by Senators John McCain and Lindsey Graham, provides detainees held indefinitely in Afghanistan with the right to a military defense lawyer and a neutral military judge to evaluate whether their detention is lawful and necessary. The provision was not particularly controversial and garnered little media attention; Congress apparently understood that for the U.S. to maintain any legitimacy while imprisoning some 3,000 Afghans in their own country it has to provide them basic rights to defend themselves.
As Marcy noted, though, Obama’s signing statement sought to undercut that authority for an Afghan review. Graham and McCain, on their hypocrisy tour, appear to be agitating for the US veto power that Afghanistan never seems to have agreed to. From the ToloNews article accompanying the video: Continue reading
Apparently with the blessing of Supreme Leader Ayatollah Ali Khamenei, Iranian President Hassan Rouhani is taking huge and significant steps toward a thawing of relations with the West while also moving to lessen the grip of hard line positions within Iran.
Rouhani and US President Barack Obama have been exchanging letters that seem to have paved the way for further discussions and improved negotiations on the issue of Iranian nuclear technology. Iran released a number of political prisoners on Wednesday. Iran also appears headed toward another round of P5+1 talks, with the date to be arranged while diplomats are in New York next week for Rouhani to address the UN. The diplomatic push reached a high point on Wednesday when Rouhani sat down in Tehran for an interview with NBC’s Ann Curry:
The entire interview in this clip is compelling, but I want to emphasize one bit that occurs near the end once the discussion moved to Syria. From the NBC blog post where the interview video is posted:
Asked whether he thought Obama looked weak when he backed off the air-strike threat, Rouhani replied, “We consider war a weakness. Any government or administration that decides to wage a war, we consider a weakness. And any government that decides on peace, we look on it with respect to peace.”
What a different viewpoint than we see inside the DC beltway. Throughout the entire Syria episode, we have been bombarded with the refrain that Obama simply had to attack Syria because if he didn’t, he would lose his credibility and look weak. Rouhani, on the other hand, states that it is resorting to war that is the real weakness.
If going to war is the real weakness, then it appears that Lindsey Graham may want to be the weakest politician in the US:
Sen. Lindsey Graham (R-S.C.) said Tuesday he’s working on legislation that would give the president the green light to attack Iran if negotiations over the country’s alleged nuclear weapons program stall.
Graham is clearly approaching the issue from a very different side than Rouhani.
Who’s weak now, Lindsey?
Rouhani and Khamenei are taking steps to tell the “weaker” elements on their side to STFU:
On Monday, the new president said the Revolutionary Guards — who report to Khamenei and have been accused of backing hard-liners — should stay out of politics. The next day, Khamenei was quoted on state TV as saying, “It is not necessary for the Guards to have activities in the political field.”
If only Lindsey would show a little bit of strength and bite his tongue while diplomacy has its best chance in years.
There is a very interesting point thrown in as a small tidbit in Monday’s New York Times story on Barack Obama securing the support of John McCain for a military strike on Syria:
Officials said that in the same conversation, which included Senator Lindsey Graham, the South Carolina Republican, Mr. Obama indicated that a covert effort by the United States to arm and train Syrian rebels was beginning to yield results: the first 50-man cell of fighters, who have been trained by the C.I.A., was beginning to sneak into Syria.
Taken at face value, this version of the story would have us believe that the first group of 50 trained by the CIA was presumably still in the process of “sneaking” into Syria on Monday. But the timeline of US training for these fighters is much more complex than that. Some foul-mouthed blogger noted back in May that this training program had already been underway for some time and the LA Times caught up with her in June, disclosing that the program began at least as far back as November 2012 on US bases in Jordan and Turkey.
The LA Times article details that the training is carried out by both special operations troops and CIA personnel. That would put this program squarely within the US tradition of training and releasing death squads that seem to be as adept at killing innocent civilians as they are at killing military targets. We have seen details of their operation in Iraq and Afghanistan under David Petraeus’ vaunted COIN program. There is no information in the LA Times article regarding the death squads entering Syria at that time. Reading between the lines of the article suggests that the squads were in a holding pattern at that point, awaiting better weapons from the US.
In direct contradiction to Obama’s Monday statement to McCain and Graham on the timing of the entry of the first US-trained death squads into Syria, we have this report from the Jerusalem Post that quotes a story first reported in Le Figaro:
The first group of 300 handpicked Free Syrian Army soldiers crossed the border on August 17 into the Deraa region, and a second group was deployed on August 19, the paper reported.
The paper quoted a researcher at the French Institute for Strategic Analysis as saying the trained rebels group was passing through Ghouta, on their way to Damascus.
Okay, now this gets interesting. Obama claimed only the first group of 50 were entering, while Le Figaro claimed there were two groups, with the first one being 300 and the second one not specified by size. Further, note the dates and location: they entered on August 17 and 19 and they passed through Ghouta. The large number of deaths from a suspected chemical warfare agent occurred on August 21 in Ghouta. In fact, the second paragraph of the Jerusalem Post article notes:
Le Figaro reported that this is the reason behind the Assad regime’s alleged chemical weapons attack in Damascus on Wednesday morning, as UN inspectors were allowed into the country to investigate allegations of WMD use.
Were these first groups of CIA-trained death squad members the target of the attack? Or could it be even worse than that? Vladimir Putin had some very interesting things to say in a wide-ranging interview today, but this bit stands out in relation to the death squad story:
“If it is determined that these rebels used weapons of mass destruction, what will the United States do with the rebels?” Mr. Putin asked. “What will the sponsors of the rebels do? Stop the supply of arms? Will they start fighting against the rebels?”
Whether they were the targets of an attack by Assad’s forces or whether they were the agents carrying out a false flag attack, US-trained death squads could well be at the center of the disputed use of chemical weapons. That would seem to be both a strong incentive and a huge tell for Obama to change both the date and the size of the entry of the first of these agents trained by the US. After all, even while reporting Obama’s leak to McCain and Graham on Monday, the New York Times noted that the training program is covert.
Except that it’s not just the US training them. Going back to the Jerusalem Post article:
The rebels were trained for several months in a training camp on the Jordanian-Syrian border by CIA operatives, as well as Jordanian and Israeli commandos, the paper said.
Oh my. That’s quite the international faculty for this training program. What new wonders await us as more graduates of the program pour into Syria?
Yesterday, I noted that McClatchy, the first outlet to publish (though probably not the first outlet to get the leak) the news that the big terror alert stems from an intercepted communication between Ayman al-Zawahiri and Nasir al-Wuhayshi, clearly labeled its source as a Yemeni official.
HuffPo not only confirmed this, but got McClatchy’s editor James Asher to provide a little lesson in journalism.
Our story was based on reporting in Yemen and we did not contact the administration to ask permission to use the information. In fact, our reporter tells me that the intercept was pretty much common knowledge in Yemen.
On your larger question about the administration’s request, I’m not surprised. It is not unusual for CNN or the NYT to agree not to publish something because the White House asked them. And frankly, our Democracy isn’t well served when journalists agree to censor their work.
As I’ve told our readers in the past: McClatchy journalists will report fairly and independently. We will not make deals with those in power, regardless of party or philosophy.
Now, predictably, some of the same people who generated the outrage over UndieBomb 2.0 have squawked about the danger of this leak (which, if it is what has been described, must be damaging).
“I’m very worried about leaks to the media of classified information because it warns the enemy,” Sen. John McCain, R-Ariz., told Ward. “That’ll be the last intercept of that kind, of means of communication that we intercept.”
Added Sen. Lindsey Graham, R-S.C., “If we compromise our ability to find out what these guys are up to and stop them before they act, we’ll pay a heavy price. They’re not deterred by dying. They embrace dying. They just want to take me and you with ’em.”
Frankly, McCain and Lindsey are right this time around. This feels like a politicized leak, and if the underlying intelligence was what the reports say, it may well badly damage our legitimate SIGINT efforts.
All that said, I confess I popped a little popcorn when I read this last night. Because it’s clear the Yemenis weren’t the only ones leaking like a sieve. Someone in the Administration (NYT’s sources) It’ll be hard for the Administration to target McClatchy given that they’ve already made clear where their source is (though I can’t help to suspect McClatchy’s sharp response to relates to the reported treatment of McClatchy freelancer Jon Stephenson). So who are they going to scapegoat this time?
I’ll probably have a few posts on Harold Koh’s speech opposing what he calls the “Forever War” at the Oxford Union. For now, I want to look at his argument against a new Authorization to Use Military Force.
I strongly disagree with those who claim that new legislation is now necessary to authorize the Administration to fight against new enemies. The burden of proving that such legislation would be either necessary or wise should fall on the proponents. As a lifelong international and constitutional lawyer who has worked on these legal issues for a decade, I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat. Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration. Nor would adopting new domestic legislation make actions in preemptive self-defense lawful under international law. And unless we can clearly define just who the new enemies are–and why existing legal authorities are insufficient to defend ourselves against them–we have no basis for passing new laws that would perpetuate the Forever War against shadowy foes whose association with those who have attacked us on 9/11 cannot be proven.
It’s hard to tell where the boundaries between good faith and deception lie here. After all, in several places in the speech — including this passage purportedly distinguishing what Obama has done from what Bush did — Koh’s language admits the possibility that Congressional sanction for military force is not the only authority Obama is working with (though he does admit that Congressional authority is one source of authority).
First, the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s s vague constitutional powers.
And so when he says things like “I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat,” it seems likely he’s preserving the ability to rely on Article II authority for something called an “imminent threat.” The same is true when he invokes “existing legal authorities” when he talks about fighting people who are clearly not Al Qaeda.
In other words, even while he seems to be opposed to treating our newer enemies as war opponents, he also seems to be reserving the right to rely on Article II authority to go after them. Which is not necessarily a better proposition for those who truly value other tools rather than killing.
That’s why I’m struck by this sentence.
Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration.
What Koh seems to be worried about is shifting the balance of the Youngstown test — whether Presidential power is expansive or limited — of the AUMF itself (Koh pretends authorizing military force is the same thing as declaring war, but in any case, last I checked, the authority to declare war belonged to Article I).
That’s true, first of all, because the way the existing AUMF was written — which allows the President to determine the enemy and has been interpreted consistently but wrongly as authorizing war powers here in the US. A new AUMF might (though probably wouldn’t) explicitly clarify the limits to war powers in the US or at least with US citizens.
But as even the 2012 NDAA showed, it can work the other way, with Congress requiring that Obama default to military detention and commissions with any new terrorist suspects. Mind you, Obama took the limits on what he could do in Gitmo far, far more seriously than he did the requirement that DOD give every one of its detainees a meaningful review, so he’s already picking and choosing what legislative requirements he fulfills. But in theory at least, Congress can mandate the President treat certain targets as enemies of war, rather than criminals.
But that, it seems to me, is ultimately what this debate about a new AUMF comes down to. Koh and, presumably, others who have served the President won’t want Congress to change the delicate balance that offers the President a great deal of flexibility to operate under both the AUMF and Article II. And to some degree, they’re right to worry about what batshit stuff the Lindsey Grahams of the world will mandate. But I suspect they’re just as worried that a new AUMF will put real limits to the President’s current fairly unlimited authority.
Look, I don’t trust Congress to write a new AUMF either. If they do one, it’s going to contain all manner of batshittery.
But bizarrely, in our crazy world, passing a new one might actually be a more effective way to limit what the President can and can’t do as anything else that has been tried. If we want to force the Executive Branch to stop waging war against Americans in America, we’re going to have to do so explicitly.
In an attempt to scare Congress into passing the cybersecurity legislation they failed to pass last year, Sheldon Whitehouse scheduled a hearing on cybersecurity today. In the hearing — and in this op-ed he penned with Lindsey Graham — he repeated a claim he has made before: cybertheft may be the biggest “illicit” transfer of wealth in history.
Almost every facet of American life is threatened when intruders exploit our cyber-vulnerabilities. And the risk is not from China alone. Foreign governments such as Iran and terrorist groups such as al-Qaida seek to worm into national infrastructure and threaten catastrophe here at home. Foreign agents raid companies, stealing plans, formulas and designs. Foreign criminal networks take money out of banks, defraud consumers with scams and sell illicit goods and products, cheating U.S. manufacturers. It may be the greatest illicit transfer of wealth in history. [my emphasis]
I think in the hearing itself, Whitehouse wasn’t as careful to always use that word “might.”
The greatest illicit transfer of wealth in history.
Don’t get me wrong: cyberattacks of all sorts are a real threat. They cost consumers a great deal of inconvenience and, at times, lots of money. They cost defense contractors far more (though of course, some of that is built into our model of defense). They cost sloppy companies as well.
But the biggest illicit transfer of wealth in history?
Ignore recent unpunished giant transfers of wealth in the wake of the financial crisis, which the Senate Judiciary Committee has largely ignored.
I guess the reason I find this so stunning is all the obviously huge transfers of wealth it ignores that were part of slavery and colonization.
Were those licit?
Those were, like Chinese or Iranian or Russian cyberattacks on the US, examples of states (and private entities) taking advantage of vulnerabilities elsewhere. They were certainly considered legitimate at the time, because Europeans got to write the history of colonization, and because they made up claptrap about “civilization” to justify it. But from a distance they look more like the kind of exploitation states often engage in if they’ve got an obvious advantage over another state or organization.
All that’s not to say Montezuma shouldn’t have resisted the Spaniards. That’s not to say we shouldn’t defend against cyberattacks.
But what really makes the US so vulnerable to cyberattacks are 1) that we’re so reliant on the Internet and 2) we’re so reliant on intellectual property (indeed, the very claim that cybertheft is the biggest transfer of wealth relies on a certain understanding of IP as wealth that itself depends on a legal infrastructure that is contingent on our relative world power). And also that so much of our critical infrastructure and IP holders are in private hands and therefore much harder to demand diligence from. That is, our vulnerability to cyberattacks is in part a fragility of our own bases for power (a vulnerability that will probably end up being less lethal than the fact that the immune systems of indigenous peoples hadn’t been exposed to European diseases).
Also, this entire discussion — which danced around the question of an international regime that might limit such attacks — completely ignored the StuxNet attack, the fact that a nation as vulnerable as we are pushed the limits of the offensive capability first. One of the witnesses (I think FBI Assistant Director Jonathan Demarast) even suggested that if our government were chartered to attack the private sector (cough, Echelon) of other countries we’d be damn good at it too — as if our attacks on the public infrastructure of Iran doesn’t count.
I get the value of a good fear campaign (I wish Whitehouse would fearmonger more in his regular addresses on climate change). But there’s fearmongering and there’s absurdity. And I think suggesting that cybertheft is worse than the stealing of entire continents is the latter.
Yesterday, the Senate Armed Services Committee announced a hearing to revisit the 2001 Authorization to Use Military Force. In addition to a bunch of DOD figures (but not the recently departed Jeh Johnson, the DOD-connected person who said the most interesting things about the AUMF), it’ll have (I’ve linked their most salient comments on the AUMF):
Rosa Brooks, Professor of Law, Georgetown University Law Center
Geoffrey Corn, Professor of Law, South Texas College of Law
Jack Goldsmith, Professor of Law, Harvard Law School
Kenneth Roth, Executive Director, Human Rights Watch
Charles Stimson, Manager, National Security Law Program, The Heritage Foundation
Curiously, John Bellinger who (as far as I understand) started the discussion of a new AUMF is not slated to testify. Also note that the Deputy Director of Special Operations for Counterterrorism will testify, but no one from CIA is scheduled to; while JSOC can operate under the President’s inherent authority, it likely prefers the legal cover of an AUMF (and therefore may be one of the entities pushing for an AUMF that matches reality on the ground).
Politico reports that this hearing is more than speculative: Levin and no-longer-SASC-Ranking-Member-but-he-might-as-well-be John McCain are planning to rewrite the AUMF, with help from Bob Corker, Dick Durbin, and Lindsey “all detainees must be military” Graham.
And if the inclusion of Graham in that group doesn’t scare you, remember that this crowd is substantively the same one that enshrined military detention in 2012’s NDAA. While that effort might be regarded as “reasonable” Carl Levin and John McCain’s attempt to present something more reasonable than House Armed Services Committee Buck McKeon was pushing for, and while the NDAA originally included exceptions for US citizens, in the event, the White House pushed Carl Levin to effectively rubber stamp its claims to unlimited authority, including detaining (or killing) US citizens.
And if that doesn’t have you worried enough about this effort, consider this quote, which mocks the contributions Rand Paul or Ted Cruz might make to this debate.
“Can you imagine what Paul or Cruz would do with this?” said one top Democratic aide. “It could be a disaster. And it would be worse in the House.”
As a threshold matter, a top aide who can’t distinguish between Paul’s more heartfelt libertarianism from Cruz’ authoritarianism pretending to be libertarianism is a concern. But to call the influence of both as “a disaster” is troubling.
Ultimately, though, what is likely to happen with this debate is that all players will be unwilling to discuss openly what we’ve actually been doing in the name of war against al Qaeda, up to and including waging war in the “homeland.” That’s one thing the 2001 AUMF was written to exclude. And I can almost guarantee you, it’s an authority the President — and the top Democratic aides who mock Rand Paul — will want to preserve.
On the Sunday shows yesterday, House Intelligence Chair Mike Rogers suggested that the government missed Tamerlan Tsarnaev’s trip to Russia in 2012 because he used an alias. This morning, Lindsey Graham explained that the problem was slightly different. Tamerlan’s travel documents misspelled his name.
“He went over to Russia, but apparently, when he got on the Aeroflot plane, they misspelled his name,” Graham, a South Carolina Republican said on Fox television this morning. “So it never went into the system that he actually went to Russia.”
Graham, a member of the Armed Services Committee, said in answer to a follow-up question that he did not know whether Tsarnaev, the 26-year-old terrorist suspect who died early Friday following a shootout with law enforcement, had misspelled his name on purpose.
The FBI “said Aeroflot gave us the information” that Tsarnaev had traveled there, Graham said, though he did not specify when that occurred.
Now, Lindsey doesn’t appear to know whether misspelling was the government’s or Aeroflot’s fault or Tamerlan’s deceit. Assuming Lindsey’s right about the larger point, whatever the source, a misspelling suggests a very different issue than an outright alibi (which would raise questions about the documents Tamerlan used, rather than the tracking of those documents).
Update: At the very end of the Senate Judiciary Committee Immigration hearing, Chuck Schumer said the error arose from Aeroflot typing in Tamerlan’s name incorrectly, so it appears it was not an attempt to deceive by Tamerlan.
Two years before Tsarnaev departed for Russia in January 2012, the government spent a good deal of time reviewing what prevented the government from responding to the several warnings about Umar Farouk Abdulmutallab, the UndieBomber, to prevent him from traveling to the country. One of the problems (though by no means the most serious one), was that the cable conveying warnings from Abdulmutallab’s father spelled his name wrong.
As was widely reported within hours of the failed bombing attempt, Abdulmutallab’s father—a former Nigerian government minister and prominent banker—went to the US embassy in Abuja in November to warn that his son was involved with radical Islamists in Yemen and had broken off contact with his family. The family said they had given US officials extensive information about their son in the expectation that they would “find and return him home.”
In his prepared statement to the House Committee on Homeland Security on January 27, State Department Under-Secretary for Management Patrick Kennedy said: “In the case of Umar Farouk Abdulmutallab, on the day following his father’s November 19 visit to the Embassy, we sent a cable to the Washington intelligence and law enforcement community through proper channels (the Visas Viper system) that ‘Information at post suggests [Farouk] may be involved in Yemeni-based extremists.’”
Kennedy confirmed that all US intelligence agencies received warnings that Abdulmutallab was training with terrorists in Yemen. He noted that the initial diplomatic cable from Abuja misspelled Abdulmutallab’s name.
As I said, that was not the most important problem leading to missed warnings. But it was one identified in the lessons learned period.
Yet it appears likely that one of the potential (if Tamarlan’s trip ends up showing any contact with extremists, which it hasn’t yet) lessons learned here will be one we purportedly learned 3 years ago: that our software needs to be better at using wildcards to identify close but not exact spellings.
We’re already seeing hints that facial recognition may not have served as the miracle solution it often gets sold as. It now appears we might not even have the databases running our watchlist system working as well as it needs to.
Update: Swapped out the Politico version of this report for the BoGlo one, which was more informative and changed the language to reflect the additional information.
Particularly given Lindsey Graham’s persistent tweeting yesterday that “the last thing we may want to do is read Boston suspect Miranda Rights,” there was a lot of discussion in the moments after Boston Marathon bombing suspect Dzhokhar Tsarnaev was captured last night about whether he would be read his rights.
At first, there were reports he would be. But then DOJ announced he would not be read Miranda immediately; they would invoke the public safety exception to question him.
“The suspect is en route to the hospital for immediate treatment,” the official tells TPM’s Sahil Kapur. “But we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.”
As of about 40 minutes ago, he had still not been read his rights.
Now, thus far, I’m actually not that worked up about Miranda rights (though I may get there soon). As Orin Kerr explains, the public safety exception is a legally recognized law, and Miranda itself only limits what can be admitted as testimony against Dzhokhar in his trial (I’m betting he’ll plead guilty in any case). The government appears to have so much evidence against him in any case, any confession he makes will likely not be necessary to convict him.
Mind you, as Charlie Savage reported two years ago, the government has been institutionalizing longer delays before they give Miranda warnings, most notably with people they (or foreign proxies) interrogate overseas first, followed by a clean team Mirandized interrogation. And as the reference to “gain[ing] critical intelligence” above suggests, the Obama Administration is stretching the intent of pre-Miranda interrogations to include more substantive interrogation (update: Emily Bazelon also made this point).
But here in the US, the delays on Miranda warnings aren’t that long. The best–quite similar–example is the 2009 UndieBomber, who was interviewed for about 50 minutes under a public safety exception when he was captured. That entire interrogation was deemed admissible and in fact formed a significant part of the opening arguments in his trial (which didn’t get much further than opening arguments before he plead guilty). So the UndieBomber’s case is one reason the Administration is confident they could question Dzhokhar without Mirandizing him at first (though the length of time has gotten far longer than used with the UndieBomber).
There’s a precedent from the UndieBomber I find more troubling though. The judge in that case also allowed the use of UndieBomber’s statements from the hospital after he had been given a fair amount of sedation. While there was a dispute about how much he got and what kind of effect that might have had, conversations he had with a nurse were also used in the opening arguments of the trial. The two issues together — a suspect interviewed without a lawyer after he’s been given serious drugs, both of which will be apply to Dzhokhar, as well — is troubling on legal, humanitarian, and practical grounds. The High-Value Interrogation Group had already been brought in last night, which suggests he may well be asked questions while in precarious medical state.
But the big issue, in my opinion, is presentment, whether he is brought before a judge within 48 hours. In addition to stretching Miranda, the government has also been holding and interrogating suspects for periods — up to two weeks for American citizens and far longer for non-citizens — before they see a judge. Not only does this postpone the time when they will be given a lawyer whether they ask or not (because judges are going to assign one), but it gives the government an uninterrupted period of time to use soft coercion to get testimony and other kinds of cooperation.
In my opinion, two of the most troubling cases like this, both involving naturalized citizens accused of terrorism, are Faisal Shahzad and Manssor Arbabsiar.